Brown v. Greiner
| Decision Date | 03 June 2005 |
| Docket Number | No. 03-2480.,No. 03-2269(XAP).,No. 03-2833.,No. 03-2242(L).,03-2242(L).,03-2269(XAP).,03-2480.,03-2833. |
| Citation | 409 F.3d 523 |
| Parties | Nelson BROWN, Petitioner-Appellee-Cross-Appellant, v. Charles GREINER, Superintendent, Green Haven Correctional Facility, Respondent-Appellant-Cross-Appellee. Harry Rosen, Petitioner-Appellee, v. James Walsh, Superintendent, Sullivan Correctional Facility; Eliot L. Spitzer, Attorney General of the State of New York, Respondent-Appellants. Betsy Ramos, Petitioner-Appellant, v. Elaine Lord, Superintendent; Bedford Hills Correctional Facility; Eliot Spitzer, New York State Attorney General, Respondent-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Erica Horwitz, Appellate Advocates (Lynn W.L. Fahey, on the brief), New York, NY, for Petitioner-Appellee-Cross-Appellant Nelson Brown.
Leonard Joblove, Assistant District Attorney, Kings County (Charles J. Hynes, District Attorney; Jane S. Myers, Assistant District Attorney, on the brief), Brooklyn, NY, for Respondent-Appellant-Cross-Appellee Charles Greiner.
Andrew C. Fine, The Legal Aid Society, Criminal Appeals Bureau, Brooklyn, NY, for Petitioner-Appellee Harry Rosen.
Morrie I. Kleinbart, Assistant District Attorney, New York County (Robert M. Morgenthau, District Attorney; Nicole Beder, Assistant District Attorney, on the brief), New York, NY, for Respondent-Appellants James Walsh and Eliot L. Spitzer.
John Schoeffel, The Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Petitioner-Appellant Betsy Ramos.
Jane S. Myers, Assistant District Attorney, Kings County, (Charles J. Hynes, District Attorney; Leonard Joblove, Scott J. Splittgerber, Assistant District Attorneys, on the brief), Brooklyn, NY, for Respondent-Appellees Elaine Lord and Eliot Spitzer.
Theodore S. Green and Richard D. Willstatter, Green & Willstatter, White Plains, NY, for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers.
Before: WALKER, Chief Judge, LEVAL, KATZMANN, Circuit Judges.
These three appeals, which we have consolidated, present the same question: Were the state court decisions affirming Petitioners' extended sentences under New York's persistent felony offender statute, N.Y. Penal Law § 70.10, "contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d). The relevant Supreme Court ruling to which the petitions refer is Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which ruled that in order for a sentence to comply with the dictates of the Sixth Amendment, a factual finding that drives a sentence above the otherwise applicable statutory maximum penalty (other than the fact of a prior conviction) must be found by the jury beyond a reasonable doubt, or be admitted by the defendant. We hold it was not unreasonable, in light of then-existing Supreme Court precedent, for the state courts to conclude that a sentencing judge's "opinion" as to what type of sentence would "best serve the public interest" is not a factual finding within the meaning of Apprendi. We accordingly reverse the judgments granting writs of habeas corpus in Brown and Rosen, and affirm the judgment denying the writ in Ramos.
Petitioners Nelson Brown, Harry Rosen, and Betsy Ramos, in their separate prosecutions, were each sentenced to extended sentences under New York's persistent felony offender statute, N.Y. Penal Law § 70.10. Under that statute, each received a longer sentence than New York law would otherwise have permitted. New York law designates two classes of persistent felony offenders: (1) persistent violent felony offenders, and (2) persistent felony offenders. A person convicted of a violent felony, after two prior convictions for violent felonies, is deemed (with certain exceptions) a "persistent violent felony offender" and is subject under N.Y. Penal Law § 70.08 to a mandatory extended sentence. Section 70.10, which applies to the defendants in this case, provides that "a person, other than a persistent violent felony offender . . ., who stands convicted of a felony after having previously been convicted of two or more felonies" is a "persistent felony offender" (subject to certain qualifications relating primarily to the nature of the prior offenses, the sentences the defendant received for them, and whether imprisonment for the prior offenses began prior to the commission of the present offense). If the sentencing court "is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest," id. § 70.10(2), such an offender may be sentenced for the new felony offense as if it were a Class A-I felony, notwithstanding the statutory penalty ordinarily provided for the crime committed.1 Determinations under this section are made after a hearing conducted under N.Y. Criminal Procedure Law § 400.20. For Class A-I felonies, New York law imposes an indeterminate sentence with a mandatory minimum of fifteen or twenty-five years, and a maximum of life imprisonment. See N.Y. Penal Law § 70.00(2)(a), (3)(a)(i).
Petitioner Nelson Brown was convicted, following a jury trial, of criminal possession of a weapon in the third degree, in violation of N.Y. Penal Law § 265.02(4). The prosecution stemmed from a gun fight that resulted in the accidental shooting of a fourteen-year-old. The jury acquitted Brown of all other charges.
Third-degree criminal possession of a weapon ordinarily carries a maximum sentence of seven years. See N.Y. Penal Law §§ 70.00(2)(d), 265.02. Brown, however, was charged under § 70.10 as a persistent felony offender. At his persistent felony offender hearing, Brown conceded that he had two predicate felony convictions. After receiving evidence, the court sentenced Brown under § 70.10, as if he had been convicted of a Class A-I felony, to an indeterminate term of fifteen years to life imprisonment. In imposing the sentence, the judge expressed reluctance and some regret that "no middle ground" existed between the seven-year maximum sentence that would otherwise apply and sentencing Brown to fifteen years to life as if he committed an A-I felony.
Brown appealed, challenging the sufficiency of the evidence supporting his conviction and the sentencing court's failure to state on the record with sufficient specificity the reasons why it imposed a persistent felony offender sentence. On January 31, 2000, the New York Supreme Court, Appellate Division, held that Brown had failed to preserve his sufficiency-of-the-evidence claim for appellate review and, in the alternative, that the evidence was legally sufficient to establish Brown's guilt beyond a reasonable doubt. The Appellate Division, however, vacated and remanded for resentencing because the sentencing judge had failed to record the reasons for sentencing Brown as a persistent felony offender. People v. Brown, 268 A.D.2d 593, 704 N.Y.S.2d 83 (2nd Dept.2000) leave to appeal denied, 94 N.Y.2d 945, 731 N.E.2d 619, 710 N.Y.S.2d 2 (2000) (table). At resentencing, the trial court elaborated on its reasons and again sentenced Brown, as if an A-I felony offender, to fifteen years to life imprisonment.
Brown appealed from the reimposed sentence. In the meantime, the United States Supreme Court decided Apprendi. Brown argued that his sentence violated Apprendi, but the Appellate Division dismissed this argument as "without merit." People v. Brown, 284 A.D.2d 406, 726 N.Y.S.2d 280 (2nd Dept.2001). Brown was denied leave to appeal to the New York Court of Appeals on August 2, 2001. People v. Brown, 96 N.Y.2d 916, 758 N.E.2d 659, 732 N.Y.S.2d 633 (2001) (table).
Brown then petitioned in the United States District Court for the Eastern District of New York for a writ of habeas corpus under 28 U.S.C. § 2254. The district court (John Gleeson, J.) denied several of his claims, but granted the writ of habeas corpus, concluding that Brown's persistent felony offender sentence violated Apprendi. Brown v. Greiner, 258 F.Supp.2d 68, 80-82 (E.D.N.Y.2003). The State then brought this appeal.2
Petitioner Harry Rosen was convicted, following a jury trial, of sexual abuse in the first degree, in violation of N.Y. Penal Law § 130.65(3), and endangering the welfare of a child, in violation of N.Y. Penal Law § 260.10(1). The convictions resulted from his sexual abuse of a four-year-old while riding next to her on a subway car.
First-degree sexual abuse ordinarily carries a maximum sentence of seven years See N.Y. Penal Law §§ 70.00(2)(d), 130.65. Rosen was charged as a persistent felony offender under § 70.10. At his persistent felony offender hearing, Rosen conceded that he had been previously convicted of two predicate felonies. The court received evidence concerning Rosen's psychiatric condition, his extensive history of abusing children, his own history of being abused as a child, and the impact of the crime on the victim's family. The court sentenced Rosen under the persistent offender statute, as if convicted of a Class A-I felony, to an indeterminate term of twenty-five years to life in prison on the first-degree sexual abuse count, with a concurrent sentence of one year on the child endangerment count.
The Appellate Division affirmed Rosen's conviction on December 7, 1999. People v. Rosen, 267 A.D.2d 28, 700 N.Y.S.2d 116 (1st Dept.1999). Rosen was granted leave to appeal to the New York Court of Appeals, and while his appeal was pending, the Supreme Court decided Apprendi. Rosen then argued for the first time before the New York Court of Appeals that the increase in his sentence...
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